Mulaudzi v Mudau and Others (1034/2019) [2020] ZASCA 148 (18 November 2020)

Mulaudzi v Mudau and Others (1034/2019) [2020] ZASCA 148 (18 November 2020)

The Supreme Court of Appeal held that the sale of the property by the second respondent, who was married in community of property, without the written consent of his spouse, would ordinarily be invalid under s 15(2)(a) of the Matrimonial Property Act. However, s 15(9)(a) provides that if the purchaser did not know and could not reasonably have known that the required consent was lacking, the transaction is deemed valid. The appellant established that she did not know and could not reasonably have known of the second respondent's marital status, relying on his representations in the sale agreement and sworn affidavit. The court rejected the argument that the appellant should have made...

Citation
[2020] ZASCA 148
Parties
Appellant: Rotondwa Mulaudzi; Respondent: Matodzi Petronella Mudau; Respondent: Avashoni Thomas Mudau; Respondent: Registrar of Deeds, Polokwane
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 November 2020
Case Number
1034/2019
Procedural Posture
Civil Appeal / Appeal From the Limpopo Division of the High Court, Polokwane
Outcome
Appeal upheld with costs; order of the full court set aside and replaced with an order dismissing the appeal with costs.
Judges
Van der Merwe, Makgoka, Plasket, Ledwaba, Mabindla-Boqwana
Legal Topics
Matrimonial Property Act, Sale of Immovable Property, Consent in Marriage, Deemed Consent, Fraudulent Misrepresentation
Family and Children Land and Property Matrimonial Property Act Sale of Immovable Property Consent in Marriage Deemed Consent Fraudulent Misrepresentation

Case Brief

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Parties

Rotondwa Mulaudzi

Appellant

Matodzi Petronella Mudau

Respondent

Avashoni Thomas Mudau

Respondent

Registrar of Deeds, Polokwane

Respondent

Procedural Posture

Civil Appeal / Appeal From the Limpopo Division of the High Court, Polokwane

Legal Issues

  1. 1 Whether the sale of immovable property by a spouse married in community of property without the written consent of the other spouse is valid under s 15(2)(a) and s 15(9)(a) of the Matrimonial Property Act.
  2. 2 Whether the purchaser's lack of knowledge and inability to reasonably know of the absence of consent triggers deemed consent under s 15(9)(a).
  3. 3 Whether a fraudulent misrepresentation by the selling spouse vitiates the contract.

Ratio Decidendi

The Supreme Court of Appeal held that the sale of the property by the second respondent, who was married in community of property, without the written consent of his spouse, would ordinarily be invalid under s 15(2)(a) of the Matrimonial Property Act. However, s 15(9)(a) provides that if the purchaser did not know and could not reasonably have known that the required consent was lacking, the transaction is deemed valid. The appellant established that she did not know and could not reasonably have known of the second respondent's marital status, relying on his representations in the sale agreement and sworn affidavit. The court rejected the argument that the appellant should have made...

Court Disposition

Appeal upheld with costs; order of the full court set aside and replaced with an order dismissing the appeal with costs.

Orders

  • The appeal is upheld with costs.
  • The order of the court below is set aside and replaced with the following order: 'The appeal is dismissed with costs.'